Volume 153 — Michigan Reports

Bill by Chester E. Chandler against Charles L. Heisler, county drain commissioner, to restrain the construction of a drain. From a decree for complainant, defendant appeals..

<p>1. Deeds — Reservations—Life Estate — Husband and Wife as Grantors.</p> <p>A husband owning a fee in land, and his wife owning an inchoate right of dower therein, may give a conveyance that passes the title in fee, or may impose any limitations they see fit; whence they may reserve a life estate to themselves and the survivor of them.</p> <p>2. Same — Reservations—Construction—Life Estate — Lien for Payments.</p> <p>A deed containing the words “grant, bargain, sell and confirm ” and the covenants of warranty and seisin in common use in warranty deeds, reserving to the grantors “all right, title and control so long as we or either of us shall live’’and directing that the grantee shall pay “out of the above described real estate ” certain sums to the grantors’ children, creates a life use for the grantors, and provides a lien upon the land for the payment of the sums mentioned.</p> <p>3. Mortgages — Redemption—Right oe Remainderman — Fraud of Life Tenant.</p> <p>Where, by connivance with the life tenant of certain land, her brother bought a mortgage thereon and foreclosed it and deeded the land to her for the purpose of cutting off the remainderman’s title, he is entitled to redeem by paying the amount of the mortgage, less the value of an annuity equal to the annual interest charge payable by the life tenant during her expectancy of life as shown by the standard life tables.</p>

Bill by Charles S. Tolsma and Alexander S. Tolsma against the James E. Scripps Corporation to enjoin a building upon certain premises. .From a decree for complainant, defendant appeals. Affirmed.

Bill' by Charles Wipfler against Lucy Wipfler for a divorce, to set aside a deed, and to compel the conveyance to complainant of certain real estate. From a decree for complainant, defendant appeals. Modified.

Case by Valentine Gh de Kallands against the Washtenaw Home Telephone Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Kate Schwartz, administratrix of the estate of John Fravert, deceased, against the Mineral Range Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Debt by the Goebel Brewing Company against Samuel Medbury and others for the amount of a judgment. There was judgment for plaintiff, and defendant Medbury brings error.

Assumpsit by Albert G. Laird against the Michigan Lubricator Company for breach of a contract of employment. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Case by Celia Harris against James Neal for personal injuries. There was judgment for plaintiff, and defendant brings error.

Assumpsit under 3 Comp. Laws, § 10421, by Frank M. Peters against Thomas Birkett for fraud in the sale of certain real estate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by Henry F. Johnson against the Michigan United Railways Company for the wrongful ejectment from defendant’s car. There was judgment for plaintiff, and defendant brings error. The defendant owns and operates an electric inter urban railroad between the cities of Battle Creek and Kalamazoo with intermediate stations.

Assumpsit by Ellery Alexander against the Mud Lake Lumber Company for breach of a contract of employment. There was judgment for plaintiff, and defendant brings error. Plaintiff was employed as a sawyer by the defendant at its sawmill at $5 per day. He worked from May 26th to September 26th, when he was discharged. He testified to a contract of employment from May 26th to January 1st following.

Assumpsit by Judson Harmon, receiver of the Pere Marquette Railroad Company, against the Old Detroit National Bank for money had and received. There was judgment for defendant, and plaintiff brings error. The defendant was one of the general depositaries of the Pere Marquette Railroad Company. The funds on deposit were paid out upon warrants issued by the company.

Assumpsit by Frank Weidmart against Purvis S. Will-son for goods sold and delivered. There was judgment for defendant on a verdict directed by the court; and plaintiff brings error.

Case by Adolph' Pecard against the Menominee River Sugar Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Assumpsit by James M. Williams against Arthur P. Crane for work and labor. There was judgment for plaintiff, and defendant brings error. Defendant, a resident of the city of Adrian in this State, owns a farm located several miles distant. Plaintiff became defendant’s tenant on this farm April 1, 1903, under an arrangement whereby each was to have a share of the crops raised and sold.

Mandamus by John W. Churchill to compel the common council of Detroit to approve a liquor bond. There was an order denying the writ, and relator brings certiorari.

Case by William H. Daniels against tbe Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>1. Intoxicating Liquors — Regulation—Municipal Ordinance-Exclusion of Females — Validity—Constitutional Law.</p> <p>A municipal ordinance to “restrain, license and regulate saloons,” etc., which provides that “no person licensed under this ordinance shall harbor or employ any females in or about his or her place of business, or permit females to resort to his or her place of business for the purpose of drinking,” is not invalid as an unwarranted discrimination against females and an infringement of their rights, privileges, and immunities, granted by the Constitution, but is a valid exercise of the police power.1</p> <p>2. Same — Ordinance—Validity—Flint Charter.</p> <p>The charter of the city of Flint (Act No. 420, Local Acts 1905), by section 10 of chapter 15 of which power is conferred upon the common council to prevent vice and immorality, and to restrain, license and regulate saloons and other places where intoxicating liquors are sold, authorizes an ordinance prohibiting women from resorting to places where liquors are sold for the purpose of drinking. *</p>

Mandamus by the township of Stambaugh to compel the treasurer of Iron county to pay over certain taxes collected for township and school purposes. There was an order granting the writ, and respondent brings certiorari.

, presiding. Case by Willis Woodworth, administrator of the estate of Rex Woodworth, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

<p>Error to Leelanau; Mayne, J.</p> <p>Assumpsit by Herman Hyman against Joseph Kirt on a promissory note. There was judgment for defendant, and plaintiff brings error.</p>

<p>1. Saving Questions for Review — Objection Below — Competency of Witness.</p> <p>Whether it was error, under section 10215, 3 Comp. Laws, to receive the testimony of a boy over 10 years of age, without his being sworn, will not be decided, where the objection was not made in the trial court.</p> <p>2. Same — Order of Proof.</p> <p>Error in admitting on rebuttal evidence that would have been competent in chief cannot be availed of where not objected to below.</p> <p>3. Criminal Law — Instructions—Character of Respondent.</p> <p>The defendant in a criminal case is not entitled to an instruction, there being no testimony upon the subject, that he is presumed to be a man of good character.</p> <p>4. Intoxicating Liquors — Statutes—Constitutionality.</p> <p>The law regulating the sale of intoxicating liquors in this State is constitutional.</p>

Bill by Mabel B. Draper against Henry D. Brown, individually, and as executor of the last will and testament of Cordelia Brown, deceased, Mary Brown, the People’s Savings Bank, and others, to re-establish a deed, to set aside a deed obtained by fraud, to set aside a mortgage, to construe a will and compel the execution of the trusts created thereby, and for an accounting. From a decree dismissing the bill, complainant appeals.

Bill by George H. Pease against Ben F. Warner, Charles W. Jewett, Anna M. Jewett, and Amariah F. Freeman to foreclose a mortgage. From a decree for complainant, defendant Freeman appeals. On March 2, 1905, defendant Warner executed a mortgage to complainant upon four pieces of real estate owned by him.

Bill by Janet Butters against George Butters and Adam Butters to set aside a sale under foreclosure proceedings. From a decree dismissing the bill, complainant appeals. The bill was filed in December, 1905, or January, 1906, to set aside a sale of premises made in foreclosure proceedings under a decree of July 1, 1902. The sale took place September 13, 1902.

Charles W. Ward appealed from an order of the probate court allowing the first annual account of Willis C. Ward, Franklin B. Ward, and George K. Root, executors of the last will and testament of David Ward, deceased. There was judgment disallowing the account in part, and the executors bring error.

Case by Catherine Groat against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by Cora L. Russell and Eva J. Gibson against Bert Carpenter, the Knights of the Modern Maccabees, and others, to set aside a deed and a change in the terms of a benefit certificate. From the decree rendered, comr plainants and defendants Carpenter appeal.

Case by Edward Lynch against the Saginaw Valley Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case made from Chippewa; Steere, J. Ejectment by John F. Haden against Dayton W. Glosser and others. There was judgment for defendants on a verdict directed by the court, and plaintiff appeals. This is an action of ejectment to recover the standing timber on the W |, I E ], section 23, town 44 N, range 4 W, in Chippewa county. It is brought here on a case made. Plaintiff claims title through a tax deed from the State-Defendants are the owners of the original title.

Bill by Corydon E. Ainsworth and Frank Trompe against the Munoskong Hunting & Fishing Club to enjoin the interference with hunting wild fowl on navigable waters. From an order sustaining a demurrer to the bill, complainants appeal.

Petition by William McFarlane against Alexander T. Simpson for a writ of assistance as purchaser under a tax sale. Respondent filed an answer in the nature of a cross-bill making James B. Bradley, auditor general, a party defendant, and asked to have said sale set aside. From a decree for respondent, petitioner appeals.

Debt by the Prussian National Insurance Company against Jacob Eisenhardt, impleaded with Frank L. Carpenter, on a bond. There was an order overruling a demurrer to the declaration, and defendant Eisenhardt brings certiorari.

Summary proceedings by August Goebel, Jr., trustee of the estate of August Goebel, deceased, against William Look for the possession of certain leased premises. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

John E. More, administrator of the estate of Andrew K. Colburn, deceased, presented a claim against the estate of Reuben H. Colburn, deceased, for services rendered and for property wrongfully converted. The claim was allowed by the commissioners, and George E. Luther, ancillary administrator of said estate, appealed to the circuit court. There was judgment for claimant, and defendant brings error. Reuben H. Colburn, deceased, was the father of Andrew K. Colburn, deceased.

Case by Fanny Velthouse, by next friend, against Henry Alderink for seduction. There was judgment for plaintiff, and defendant brings error.

Bill by Burt L. Turnbull and another against William H. Johnson and others to set aside the sale of certain stock on the ground of fraud. From a decree dismissing the bill, complainants appeal. Complainants are the sons of James D. Turnbull, deceased. Said James D. Turnbull died September 19, 1900.

Assumpsit by G. S. Blakeslee & Company against the Reinhold Manufacturing Company for the breach of a contract for the sale of certain machines. There was judgment for defendant, and plaintiff brings error.

<p>Error to Shiawassee; Miner, J.</p> <p>Ejectment by L. G. Cudney against William Sherrard and another. There was judgment for plaintiff, and defendants bring error.</p>

Bill by the Grand Union Tea Company against Ignaoy Lewitsky to restrain the violation of a contract of employment. From an order sustaining a demurrer to the bill, complainant appeals.

Trover by Louis Lonier and William J. Hoffer, co-partners as Lonier & Hoffer, against the Ann Arbor Savings Bank. There was judgment for defendant on a .verdict directed by the court, and plaintiffs bring error.

Bill by Elizabeth Moore against Albert Bulgreen to restrain a trespass upon lands. Defendant filed an answer in the nature of a cross-bill to quiet title. From a decree for complainant, defendant appeals.

, presiding. Case by Eddie M. Eerry against the American Suction Gas Producer Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Defendant is engaged in the manufacturing business in the city of Lansing. In its shop, which was about 100 feet long and 45 feet wide, was an electric traveling crane used for the purpose of lifting and moving heavy articles from one part of the shop to another.

Bill by Franklin Smafield and others against John Smith and R. B. Walker, drain commissioners of Sanilac and Lapeer counties, to restrain the construction of a drain. From a decree dismissing the bill, complainants appeal.

<p>Error to Iosco; Connine, J.</p> <p>Assumpsit by William H. Mott against Wedworth C. Penoyar under section 10421, 3 Comp. Laws. There was judgment for plaintiff, and defendant brings error.</p>

Case by John G. Laetz against Peter Tierney and Harry J. Tierney for an unlawful seizure of certain mortgaged property. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Case by Louis H. Martin against the Veana Food Company, Limited, and others, for fraud and deceit. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Error, to the superior court of Grand Rapids; Stuart, J. Melvin C. Ranney was convicted of obtaining money by false pretenses, and sentenced to imprisonment for not less than 1 year, nor more than 10 years, in the Michigan reformatory at Ionia.

, presiding. Assumpsit by Charles S. Ruttle against the What Cheer Coal Mining Company for services rendered. There was judgment for plaintiff, and defendant brings error.

J. Just Broas, Isabel Mann, and Catherine Hill appealed from an order of final distribution of the estate of Levi Broas, deceased. There was judgment sustaining the order of the probate court, and appellants bring error.

Mandamus by Henry J. Patterson to compel Eddie Boron, mayor of the city of St. Johns, to appoint relator to the office of city attorney under Act No. 329, Pub. Acts 1907. There was an order denying the writ, and relator brings certiorari.

, presiding. Case by James Buxton against Thomas Ainsworth for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Loren D. Pierce against tbe C. H. Bidwell Threshing Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>Reformation of Instruments — Deeds — Reconveyance by Purchaser — Correction of Mistake.</p> <p>Complainant, a vendor of lands, having accepted a reconveyance by quitclaim deed on defendant purchaser’s failure to pay the price, filed his bill to reform the deed for a mistake in the description, and defendant answered, claiming to have acquired certain outstanding tax titles which he ought to be allowed to retain, and alleging his ignorance of the legal effect of the quitclaim as to those titles. Though the written contract of sale imposed no such obligation, the sale and the price were based upon an oral understanding that defendant was to acquire the tax titles. Held, that though defendant was not legally bound to purchase the titles for the security of his vendor, it was equitable for him to carry out his oral promise, and having attempted to do so, and accepted a release from his contract on executing the deed, equity did not demand that he be allowed to disregard the settlement.</p>

Ejectment by John C. Hartz against the Detroit, Plymouth & Northville Railway. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Assumpsit by George Westcott against Reuben Wade for work and labor. There was judgment for plaintiff, and defendant brings error. Plaintiff and defendant entered into a verbal contract whereby the former was to saw certain lumber for the latter at $3 per thousand. Plaintiff completed his contract and brought this suit and recovered a verdict and judgment for the balance remaining unpaid of $81.50.

Trespass quare clausum fregit by Sarah E. McIntyre against Mary L. Murphy. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. March 4, 1907, plaintiff and defendant entered into a written contract whereby the defendant sold to the plaintiff certain land in the township of Chikaming in Berrien county for the sum of $7,000. Plaintiff paid part of this consideration and was given possession of the land.

Appeals from Presque Isle; Emerick, J. Bills by Walter J. Curry against Augusta Larke and Edward E. Ayer, and against Frederic Denny Larke and Edward E. Ayer to quiet title to certain land. From decrees dismissing the bills, complainant appeals.

Assumpsit by J. Ward Howland, administrator of the estate of Arthur D. Howland, deceased, against A. Arthur Caille and another for an amount due on a land contract. There was judgment for plaintiff, and defendants bring error.

Assumpsit by Emma Houle against the Societe St. Jean Baptiste on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. The defendant is a fraternal beneficial society incorporated under the laws of this State. Its members are persons of French Canadian descent living in the county of Houghton. One of its objects — perhaps its main object— is to secure sick and death benefits to its members.

Assumpsit by Job Sherman against Frank Alberts, Roy E. Alberts, and Earl Alberts, copartners as F. Alberts & Sons, for goods sold and delivered. There was judgment for plaintiff, and defendants bring error. The defendants are copartners. They reside in Muskegon. During the winters of 1904-5 and 1905-6 they carried on lumbering operations in the county of Missaukee. They let - a contract to a jobber named McGill. Their superintendent was one Thompson.

<p>1. Chattel Mortgages — Foreclosure — Sale — Liability of Mortgagee — Excessive Sale.</p> <p>Defendant having seized plaintiff’s logs on a chattel mortgage and sold them in two lots for $7,713.43, the debt and expenses amounting to $7,051.71 in addition to services of the value of $700 to $800, an instruction holding it liable as for an excessive sale was erroneous, liability in such a case extending ■ only to the surplus, if any, left after the debt and expenses are paid; the mortgagee not being required to sell the logs one by one until enough is realized to pay the debt and expenses, but being entitled to sell in quantity. Moore, J., dissenting, on the ground that upon the case made by the record the instructions as a whole were sufficiently favorable to defendant.</p> <p>2. Same — Negligence of Mortgagee.</p> <p>In an action against the mortgagee of logs for negligence in caring for them after taking possession for the purpose of foreclosure, defendant is entitled to an instruction that it is not liable to plaintiff for its acts with respect to certain logs belonging to third persons which appear to have been intermingled with the mortgaged logs. Moore, J., dissenting, on the ground that upon the case made by the record the instructions as a whole were sufficiently favorable to defendant.</p> <p>3. Same — Damages—Evidence.</p> <p>Where logs covered by a chattel mortgage were commingled by the owner with others not so covered, belonging tó a third person, the mortgagor held not entitled to an instruction authorizing the recovery of damages against the mortgagee taking possession of the entire quantity for the purpose of foreclosure and negligently losing a part of them in transporting them to the place of sale, without showing what proportion of the logs so lost belonged to the several owners. Moore, J., dissenting, on the ground that upon the case made by the record the instructions as a whole were sufficiently favorable to defendant.</p> <p>4. Pleading — Declaration — Amendment — Propriety — New Cause of Action.</p> <p>A declaration in trover for the conversion of logs seized by defendant on a chattel mortgage and wrongfully removed from the place where seized, setting out certain negligent acts in transporting and caring for them, may be amended by adding a count claiming damages for the negligent acts described in the original declaration. Grant, C. J., and Hooker, J., dissenting.</p> <p>5. Chattel Mortgages — Foreclosure — Sale — Liability of Mortgagee.</p> <p>Where, in an action against a chattel mortgagee of logs for damages arising from foreclosure, there is testimony tending to support plaintiff's claim that after the debt and all reasonable expenses were satisfied there was a balance left, and that a large quantity of the logs were lost by defendant’s negligence in transporting them to market, the court did not err in refusing to direct a verdict for defendant.</p> <p>6. Same — Negligence of Mortgagee — Evidence—Sufficiency.</p> <p>In an action against a chattel mortgagee of logs for negligence in keeping and transporting them to market after seizure for the purpose of foreclosing, evidence examined, and held, that whether there was any loss of logs, and whether such loss was caused by the negligence of defendant in storing them in unsafe booms, and in attempting to tow them to market at a time of year when it was unsafe, were questions for the jury. Grant, C. J., dissenting.</p> <p>7. Evidence — Testimony at Former Trial — Admissibility—Absent Witness.</p> <p>Where a witness was beyond the jurisdiction of the court, his testimony taken at a former trial of the case was properly admitted.</p> <p>8. Trial — Instructions—Consideration as Whole.</p> <p>An excerpt from the charge should not be isolated from what preceded and followed it for the purpose of finding error.</p>

Case by Fred E. Fisher against George W. Radford, James W. Fales, Alexander McVittie, Frank N. Clark, and Anson Waring for false representations on the sale of corporate stock. There was judgment for plaintiff, and defendants bring error.

Bill by the township of Ecorse against the Jackson, Ann Arbor & Detroit Railway and others to enjoin the construction of a railway upon a highway. From a decree dismissing the bill, complainant appeals.

Assumpsit in justice’s court by Henry B. Foster against John Watson and William J. Armstrong on a promissory note. There was judgment for plaintiff, and defendants appealed to the circuit court by writ of certiorari. There was judgment affirming the judgment of the justice’s court, and defendants bring error.

Case by Louis Richards against Fred Waltz and others for the negligent killing of plaintiff’s cow. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Certiorari by Jacob Bakker and Fred Bakker against Edwin Fellows, drain commissioner, and Edward P. Kirby, probate judge, to review proceedings for the establishment of a drain. There was judgment for defendants, and plaintiffs bring error.

Case by Czeslau Syneszewski, by nest friend, against Carl E. Schmidt and Joseph Metzger, copartners as Carl E. Schmidt & Company, for personal injuries. There was judgment for plaintiff, and defendants bring error. Act No. 113, Public Acts 1901, prohibits employment of any child under the age of 14 years in any manufacturing establishment. Violation of the act is a misdemeanor.

Assumpsit by Augustus W. Wolfe against John K. Stack, surviving partner of himself and John Corcoran, deceased, copartners as Stack & Corcoran, and the Escanaba Lumber Company, for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by Casper Schneider against the township of Brown for damages to a mill pond caused by the maintenance of an embankment in a highway. There was judgment for plaintiff, and defendant brings error.

Bill by the Q-. F. Sanborn Company against David M. Alston, the Worcester Lumber Company, and others, to quiet title to land, and to enjoin the removal of certain timber. Defendants Alston and the Worcester Lumber Company, Limited, filed an answer in the nature of a cross-bill to quiet title. From a decree for complainant, and dismissing the cross-bill, defendants appeal.

, presiding. Ejectment by Lucy Dahlem against John Abbott and others. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Mandamus by Elmer N. Peters, prosecuting attorney, to compel Clement Smith, circuit judge of Eaton county, to vacate an order quashing an information.

Clair; Tappan, J. Assumpsit by Martha J. Hurd against the Northern Accident Company on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Mandamus by Jay W. Vaughan and Joseph C. Dumont, copartners as Vaughan & Dumont, to compel Flavius L. Brooke, circuit judge of Wayne county, to set aside an order denying a motion to advance a law case upon the docket.

<p>1. Mandamus — Change of Venue — Matters Considered — Matters not Presented Below.</p> <p>On mandamus to compel a circuit judge to set aside an order denying a change of venue, matters contained in the petition and brief for relator that were not presented to the circuit judge, and were not within the grounds assigned in the motion, will not be considered.</p> <p>3. Criminal Law — Venue—Change—Right of Accused.</p> <p>The defendant in a criminal case has no absolute right to a change of venue; such right depending upon a showing of cause.</p> <p>3. Same — Denial—Discretion of Court — Control by Mandamus.</p> <p>Where the showing made to secure a change of venue in a criminal case is met by counter affidavits which call for the exercise of the sound judgment and discretion of the circuit judge, his decision ought not to be disturbed by this court by mandamus except in case of a clear abuse of discretion.</p> <p>4. Same — Sufficiency of Showing — Abuse of Discretion:</p> <p>Where the most of the showing in support of a motion for a change of venue in a criminal case would apply to all the populous counties of the State, and the showing of actual prejudice is met by counter affidavits which call for an exercise of sound judgment on the part of the circuit judge, no abuse of discretion in denying the motion appears.</p>

Mandamus by Jobn C. Allport to compel Patrick Murphy, a justice of the peace, to issue a warrant for the violation of an ordinance. There was an order denying the writ, and relator brings certiorari.

Bill by Charles F. Gordon against the township of Burleigh to remove a cloud from title to certain land. From a decree for complainant, defendant appeals. Complainant filed his bill in this case to remove a cloud from the title to his land, consisting of a levy under execution, a sale of the land and sheriff’s deed to the defendant township. The facts are conceded, and, briefly stated, are as follows: Complainant acquired title in 1878.

<p>Error to Wayne; Hosmer, J.</p> <p>Case by George F. Clemens, by next friend, against the Gem Fibre Package Company for personal injuries. There was judgment for plaintiff, and defendant brings error.</p>

Assumpsit by Rufus R. Morse and Samuel H. Davis against George S. Ressler for money had and received. There was judgment for defendant, and plaintiffs bring error.

<p>1. Criminal Law — Illegal Sentence — Power to Resentence.</p> <p>Where the trial court has imposed an illegal sentence, it has the power to ■substitute for it a legal sentence, notwithstanding the illegal sentence has been partly executed.</p> <p>2. Habeas Corpus — Irregular Sentence — Propriety op Remedy.</p> <p>When there is a valid conviction and an irregular sentence, which, under the law, may be corrected by a new sentence, habeas corpus will not be permitted to perform the office of a writ of error.</p>

Maggie Martin presented a claim against tbe estate of John Thison, deceased, for an amount due under an award of alimony. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and defendant brings error.

), J. Assumpsit by Florence A. Reed against Frederick Lou-den for breach of promise of marriage. There was judgment for plaintiff, and defendant brings error. This is an action to recover damages for breach of promise of marriage. The engagement and preparation for the wedding were admitted. The day was set for the wedding. Three days previous, for some reason, the engagement was broken off.

Bill by Frank Wisniewski against Anna Nawrocki to enforce a mechanics’ lien. From a decree for complainant awarding an insufficient allowance for costs, he appeals.

Bill by John E. Bird, attorney general, on the relation of Joseph L. Hudson and others, against the city of Detroit to restrain the enforcement of an ordinance. From a decree for complainant, defendant appeals.

Proceedings under the water-craft law by the Detroit Lumber Company against the auxiliary yacht “Petrel.” There was an order dismissing the proceedings for want of jurisdiction, and claimant brings certiorari.

<p>Exceptions before judgment from Eaton; Smith, J.</p> <p>William Andre was convicted of obtaining money by false pretenses.</p>

Certiorari by Robert E. Bolger to review proceedings by the common council of the city of Detroit to remove plaintiff from the office of commissioner of parks and boulevards. There was judgment sustaining the proceedings, and plaintiff brings error.

Bill by Henry Richardi against the village of Bellaire, its president, clerk, and common council, to enjoin the borrowing of money for the establishment of a waterworks system. From a decree dismissing the bill, complainant appeals.

Case by Lafayette Quay, George W. Quay, and Edward S. Quay, copartners as D. Quay & Sons, against the Duluth, South Shore & Atlantic Railway Company for the negligent burning of certain logs. There was judgment for plaintiffs, and defendant brings error.

Cross appeals from Bay; Collins, J. Bill of interpleader by the Knights of Columbus against Margaret E. McInerney and Louise B. McInerney, personally, and as guardian ad litem of Paul B. and Ruth M. McInerney, minors, to determine title to the proceeds of a benefit certificate. From the decree rendered, defendants appeal.

Assumpsit by the Anderson Carriage Company against William A. Pungs for the breach of a contract to convey certain patents. There was judgment for plaintiff, and defendant brings error.

Bill by John N. Boussneur against the city of Detroit and Thomas M. Lucking, receiver of taxes, to enjoin the collection of an assessment. Horace H. Dickinson and others intervened as parties complainant praying the same relief. From a decree for complainants, defendants appeal. In 1902 proceedings were instituted in the recorder’s court for the city of Detroit for the opening of Hancock avenue from Fourteenth avenue to Grand River avenue.

Assumpsit by James J. Miner against the Farmers’ Mutual Fire Insurance Company of Manistee, Benzie and Mason Counties on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by John H. Walsh, trustee, against Sheridan J. Colby and others to foreclose certain mortgages: On petition of complainant to correct a clerical error in the commissioner’s report of sale. From a decree for petitioner, defendant Colby appeals.

Case by Edward B. Arnold against Elmer J. White for a breach of warranty in the sale of certain horses. There was judgment for plaintiff and defendant brings, error.

<p>1. Intoxicating Liquors — Offenses—Malt Liquor — What Constitutes.</p> <p>Engaging in the business of selling a malt liquor containing about two per cent, of alcohol without having paid the tax constitutes a violation of sections 5379, 5380, 2 Comp. Laws. Per Hooker, J., Grant, C. J., and Montgomery, J.</p> <p>2. Criminal Law — Right to Jury Trial — Constitutional Law —Direction of Verdict — Coercion.</p> <p>Though the trial court in a criminal case may inform the jury that, under the evidence, they should render a verdict of guilty, he may not compel them to render such a verdict; and an instruction that “you should find a verdict of guilty as charged, without leaving your seats, and the clerk will take the verdict,” violates the constitutional right of trial by jury. Hooker, J., Grant, C. J., and Montgomery, J., dissenting.</p>

<p>1. Burglary — Breaking—What Constitutes.</p> <p>If any force at all is necessary to effect an entrance into a building, through any place of ingress, usual or unusual, whether open, partly open, or closed, such entrance is a breaking sufficient in law to constitute burglary if the other elements of the offense are present.</p> <p>2. Same — Raising Window.</p> <p>Raising the sash of a window, not shut down close, and held down by its weight only, far enough to admit respondent’s body, constitutes a sufficient breaking to render the subsequent entry burglarious.</p>

, presiding. B. O’Dell and others presented for probate the last will and testament of John F. Goff, deceased. The will was allowed in the probate court, and Leslie Goff appealed to the circuit court. There was judgment for contestant, and proponents bring error.

Case by Edward A. Braasch, by next friend, against the Michigan Stove Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Certiorari by George Harrington and others against George W. Hamm, probate judge, and Edward D. Dickinson, drain commissioner of Calhoun county, to review proceedings for the establishment of a drain. There was judgment for respondents, and relators bring error.

Bill by William H. Lewis, trustee, against John H. Jacobs and others to set aside a deed on the ground of fraud. From a decree for complainant, defendants appeal.

George B. Taylor and Lena E. Caldwell, administrators of the estate of William H. Davis, deceased, petitioned the probate court for the distribution of a trust fund under the last will and testament of William Davis, deceased. The petition was granted, and Sarah Richards, an heir of William Davis, appealed to the circuit court. There was judgment for petitioners, and defendant brings error.

Mandamus by John Sweet and others to compel Fred W. Smith, police commissioner, and John Downey, superintendent of police, to enforce certain laws. There was an order denying an order to show cause, and relators apply for a writ of certiorari.

Exceptions before judgment from Montcalm; Wolcott, J., presiding. ' Frank Lamb and Floyd Winter were convicted of a conspiracy to commit the crime of extortion.

Condemnation proceedings by the Chicago & Kalamazoo Terminal Railroad Company against the Grand Rapids & Indiana Railway Company. There was an order overruling a demurrer to the petition, and respondent brings certiorari.

Assumpsit by Timothy Kelly, administrator of the estate of Patrick Kelly, deceased, against Robert Sproul for money paid. There was judgment for plaintiff, and defendant brings error.

Replevin by Thomas A. Anderson against Peter Pendí. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

, presiding. Adelia Clark and Thomas Hislop, executor, presented for probate the last will and testament of Huldah More, deceased. The will was allowed in the probate court, and Helen Ulrich and others appealed to the circuit court. There was judgment for contestants, and proponents bring error.

Assumpsit by Champion L. Eslow against the city of Albion for money had and received. There was j udgment for defendant on a verdict directed by the court, and plaintiff brings error.

Quo warranto proceedings by the people of the State of Michigan, on the relation of George E. Ellis and others, against John F. Calder and others to test the right of respondents to act as a corporation. There was judgment of ouster, and respondents bring error. This is a quo warranto proceeding instituted in the Kent circuit court to test the right of respondents to act as a corporation under the name and style of the Grand Rapids Hydraulic Company.

Debt by the township of Alpena against William H. Mainville, principal, and John Beck and Andrew W. Comstock, sureties, upon an official bond. There was judgment for plaintiff, and defendants bring error.